THE SUPREME COURT OF THE UNITED STATES … · 10/5/1992 · we look at the history of the enactment of the Fourth Amendment and the historical events that gave rise to its enactment

OFFICIAL TRANSCRIPT

PROCEEDINGS BEFORE

THE SUPREME COURT

OF THE

UNITED STATES

CAPTION: EDWARD SOLDAL, ET UX., Petitioners

CASE NO:

PLACE:

DATE:

v. COOK COUNTY, ILLINOIS

91-6516

Washington, D.C.

October 5, 1992

PAGES: 1 - 35

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IN THE SUPREME COURT OF THE UNITED STATES----------------- XEDWARD SOLDAL, ET UX., :

Petitioners :v. : No. 91-6516

COOK COUNTY, ILLINOIS :----------------- X

Washington, D.C.Monday, October 5, 1992

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 1:00 p.m.APPEARANCES:JOHN L. STAINTHORP, ESQ., Chicago, Illinois; on behalf of

the Petitioners.KENNETH L. GILLIS, ESQ., First Assistant State's

Attorney, Chicago, Illinois; on behalf of the Respondent.

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CONTENTSORAL ARGUMENT OF PAGEJOHN L. STAINTHORP, ESQ.

On behalf of the Petitioners 3KENNETH L. GILLIS, ESQ.

On behalf of the Respondent 26REBUTTAL ARGUMENT OF JOHN L. STAINTHORP, ESQ.

On behalf of the Petitioners 34




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PROCEEDINGS(&:00 p.m.)

CHIEF JUSTICE REHNQUIST: We'll hear argument now in No. 9&-65&6, Edward Soldal v. Cook County,Illinois.

Mr. Stainthorp.ORAL ARGUMENT OF JOHN L. STAINTHORP

ON BEHALF OF THE PETITIONERSMR. STAINTHORP: This case involves the issue of

whether the Fourth Amendment to the United States Constitution protects the law abiding against unreasonable seizure of their home and effects by state officers. If we look at the history of the enactment of the Fourth Amendment and the historical events that gave rise to its enactment over 200 years ago, if we look at the text of the amendment itself, and if we look at the decisions of this Court construing the Fourth Amendment, then the answer is unequivocally yes, the Fourth Amendment does apply in situations such as my clients' and a seizure unaccompanied by a search must nevertheless satisfy the Fourth Amendment's command that it be reasonable.

The Seventh Circuit decision from which this petition for certiorari is taken is therefore wrong in saying first of all that the law enforcement context of the case is relevant in terms of whether the Fourth


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Amendment applies, and also is wrong in saying that the Fourth Amendment does not protect possessory interests of persons, and also is wrong in saying that the Fourth, that the privacy rights of my clients in this particular situation were not violated.

QUESTION: You know just that the FourthAmendment protects possessory rights in a piece of personal property just anywhere, do you?

MR. STAINTHORP: The Fourth Amendment would protect possessory rights in the type of property which is protected by the Fourth Amendment. Yes, that would be my contention.

QUESTION: Let's assume the officers enter anopen field and run off with a mowing machine. Do you think that's a Fourth Amendment violation?

MR. STAINTHORP: I think if that is a seizure --QUESTION: Well, it's an effect, isn't it, and

it's a seizure.MR. STAINTHORP: If it is a seizure, if it is an

effect, and if in fact that seizure is unreasonable, then it would apply. And this Court has held, that it would apply in that situation in cases such as G.M. Leasing where there was a seizure of cars that were on the public street yet nevertheless that was analyzed as a possible Fourth Amendment violation, conceptually no different than


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1 the case that you are proposing here.2 If you look at Jacobsen, United States against3 Jacobsen, there you had seizure of a, what turned out to4 be cocaine, an effect, and yet that was again analyzed as5 a possible Fourth Amendment violation.6 QUESTION: Well, there's no doubt that if you7 seize something incident to an invasion of privacy in the8 home or some other protected place like a car, why the9 Fourth Amendment does, is implicated.

10 MR. STAINTHORP: But the point of those places11 was that there was no invasion of privacy. In fact in12 Jacobsen the court only got to the possible invasion of13 possessory rights after concluding that there was no14 invasion of privacy because of the involvement of, in that15 case of the private parties and for various other reasons.16 QUESTION: So a law enforcement officer walks up17 to a person on the street, grabs his briefcase out of his18 hand and walks off with it, and then gets a warrant to19 open it?20 MR. STAINTHORP: Yes.21 QUESTION: And he had probable cause to have it22 opened. But you think just seizing the briefcase on the23 street is a Fourth Amendment violation?24 MR. STAINTHORP: Yes. Yes, I do.25 QUESTION: Even if it's never opened?




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MR. STAINTHORP: Even if it is never opened because this Court has consistently held that the Fourth Amendment does protect possessory rights as well as in addition to privacy rights. In many cases those two types of rights are intertwined, as I submit they clearly were in this particular situation. But a mere violation or a sole violation of possessory rights brings the Fourth Amendment into play.

If that is not so then the whole line of cases of this Court which are known as the plain view seizure cases make no sense.

QUESTION: But if that is so how do you explainthat there hasn't been, that this is the first time that a case like this should have come up in a couple of hundred years? I mean, sheriffs have been seizing and repossessing goods since the beginning of the Republic and we don't have a case in which it has been asserted there's a violation of the Fourth Amendment. Why not?

MR. STAINTHORP: I think that's not accurate, Justice Scalia.

QUESTION: Okay. Why not?MR. STAINTHORP: Because the G.M. Leasing case,

which was a seizure for tax purposes, in that case by IRS agents, did analyze the seizure itself, not any search but the seizure itself as a possible Fourth Amendment

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V 1 violation, held that it must satisfy the command of the2 Fourth Amendment that it be reasonable and held eventually3 that it was reasonable.4 QUESTION: What was the date of that?5 MR. STAINTHORP: The G.M. Leasing was --6 QUESTION: 1977.7 MR. STAINTHORP: Okay, 1977.8 QUESTION: So it's not 200 years. 190 or - -9 MR. STAINTHORP: Well, Judge, I don't think

10 that's true too, either. Excuse me, Justice Scalia. In11 fact if you look at the history as laid out in the, in my12 brief, in my opening brief there is a consistent line of13 cases which hold that the Fourth Amendment first of all is14 applicable in a non-criminal context and is --15 QUESTION: I'm talking about sheriff seizures.16 These things have been going on all the time and very17 often the person says no, that property was wrongly taken,18 that they shouldn't have had it.19 MR. STAINTHORP: Well, most --20 QUESTION: I assume that there's a state remedy21 and it seems to me the reason has probably been that there22 is a state remedy for those seizures. If they are wrong23 you'll get your money back, and therefore the state hasn't24 taken anything without due process of law.25 MR. STAINTHORP: And for that reason I have not




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brought a procedural due process claim before this Court, and it is a Fourth Amendment claim that is before this Court and not a procedural due process claim.

QUESTION: How do you, how does the FourthAmendment apply to the states?

MR. STAINTHORP: Through the FourteenthAmendment.

QUESTION: Which reads --MR. STAINTHORP: Which is due process.QUESTION: -- no one shall be deprived of life,

liberty, or property without due process of law.MR. STAINTHORP: Correct.QUESTION: Right. So you are ultimately

bringing a due process claim before this Court.MR. STAINTHORP: In that sense, but this Court

has always been clear that civil rights actions, there are basically three types. There is, Zinermon points out that there are actions based upon a violation of a substanded provision of the Bill of Rights such as the Fourth Amendment, actions based upon --

QUESTION: Which is what you're claiming here,isn't it?

MR. STAINTHORP: Yes.QUESTION: I mean, you're bringing an

incorporation argument, not a procedure argument. You're8



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claiming corporation due process.MR. STAINTHORP: That is correct, Justice

Souter, yes. But that issue has really not been raised about whether a Fourth Amendment claim is somehow nixed if the state were in fact to provide some process for violation of that right.

QUESTION: Well, should we address that questionhere in answer to this case?

MR. STAINTHORP: Justice O'Connor, I really think you have addressed it at great length in any number of cases, from Monroe against Pape to more recently Zinermon against Burch.

QUESTION: Well, the state in this instance doesgive your client a civil damages action for the trespass,I assume?

MR. STAINTHORP: That is correct. There's no question about that.

QUESTION: So you could have filed that claim.And why didn't you?

MR. STAINTHORP: I didn't because under Section 1983 the Congress has very clearly, in my view, given me a Federal remedy for this type of action. I therefore choose to have this Federal remedy.

QUESTION: Well, do you think that the action ofthe officers was basically random and unauthorized in the




1 sense the court talked about in Parratt or Williamson2 County?3 MR. STAINTHORP: In terms of it not being4 pursuant to an established state procedure?5 QUESTION: Right.6 MR. STAINTHORP: Yes. Yes, that is correct. In7 fact there is a state procedure - -8 QUESTION: So perhaps then that's all the9 process that is due.

10 MR. STAINTHORP: If I were bringing a procedural11 due process claim that would be true.12 QUESTION: But then you're making the law turn13 just on the technicality of pleading. You create a gaping14 hole in Parratt because it's just how you allege the15 violation, and Parratt becomes pretty much a dead letter,16 doesn't it?17 MR. STAINTHORP: It doesn't at all, Justice18 Kennedy, and if you look at the cases that have construed19 Parratt, for instance if you look at Daniels against20 Williams, where the prisoner slipped and fell, that21 clearly would not, which was dismissed on Parratt grounds,22 that clearly would not be a Fourth Amendment case. There23 was no seizure that occurred in that case.24 In the limited number of cases in which a25 seizure within the Fourth Amendment has occurred the

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existence of the possibility of state process has always been held to be irrelevant and should be irrelevant because the Fourth Amendment itself does not concentrate on the process. The Fourth Amendment itself concentrates on the seizure or the search itself. If that seizure or search is termed unreasonable, then there is a violation of the Fourth Amendment.

It does not create gaping holes in the Parratt line of cases, which is a very precise holding in those cases which is that when there is a procedural due process case if the state gives post deprivation process then in several instances that is all that you are entitled to.

QUESTION: But I take it the proceduralviolation is necessarily hypothesized on some substantive constitutional violation having occurred.

MR. STAINTHORP: Well, under a procedural due process claim you would obviously have to show some deprivation of life, liberty, or property. That is certainly true. But when you're dealing with the much narrower question of a Fourth Amendment violation which deals only with searches and seizures and deals only with searches and seizures of a small category of things, persons, houses, papers, and effects, when you are dealing with that there is no requirement that you, that you first file in state court and find that you have no remedy in




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state court or that your Federal remedy is diminished by the existence of state remedies.

And indeed it really makes no sense that that should be so. The Fourth Amendment itself has no provision which in itself provides for there must be process. The Fourth Amendment looks to a seizure. It doesn't look to process. And it looks to whether that seizure or search is reasonable.

So - - and then if you look at Section 1983, through which obviously I am seeking to vindicate the Fourth Amendment rights of my client, that also has no provision that it is applicable only in the absence of a state remedy.

QUESTION: That's what Monroe v. Pape held,wasn't it?

MR. STAINTHORP: Yes it was, Chief Justice.QUESTION: But that dealt with a statutory

question basically, not a constitutional one.MR. STAINTHORP: Well, Monroe v. Pape was, my

understanding of Monroe v. Pape was that it was they were alleging a Fourth and Fourteenth Amendment violation.

QUESTION: Yes. And I think the argument on theother side was that since there were state remedies 1983 wasn't really apt, and then the court said no, that the existence of state remedies doesn't prevent as a matter of




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statutory construction the application of 1983. You don't have to exhaust.

MR. STAINTHORP: That is correct, Chief Justice. So certainly with respect to the, yes, the interpretation of 1983, there is no such provision.

QUESTION: But 1983 doesn't create anysubstantive rights and so there was a Fourth Amendment, was that the basis there?

MR. STAINTHORP: Monroe v. Pape I think alleged both Fourth and Fourteenth, although I'm not going to swear to that.

QUESTION: Yes.QUESTION: Well, the Fourth was there.MR. STAINTHORP: Yeah. As it is here.QUESTION: And of course if the Fourth, if the

Fourth Amendment required first resort to state remedies there wouldn't be a 1983 action.

MR. STAINTHORP: Well, that, for all practical effects that would be true because in a vast majority of situations where you have violations of civil rights that also does amount in some sense to a violation of state law. So yeah, if you had that provision in 1983 that it was only operative if there was no state remedy, first of all I would expect to find that in the wording of Section 1983 and it just isn't there, and secondly that would mean




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that the vast majority of Section 1983 cases would not be, you could not litigate them with Section 1983 cases.

But this Court has really consistently held that that just is not the provision, as the Chief Justice recognizes.

QUESTION: Yes, but the holding in Monroeagainst Pape was a statutory one. It said 1983, as I recall, 1983 does not require that before you resort to it you must resort to state remedies that might have given you the same relief.

MR. STAINTHORP: Okay.QUESTION: But 1983 did not, rather Monroe

against Pape did not address the contours of the Fourth Amendment.

MR. STAINTHORP: Yes, I understand the distinction that you're making there. If however you look at the Parratt, the Daniels, that line of cases, Zinermon against Burch, the Court has been quite clear that there is, for a Fourth Amendment violation the existence of possible state remedies is generally irrelevant. And once more that makes a lot of sense because how can a state statute authorize a violation of the Constitution? How can a, the existence of a state statute make retrospectively a constitutional violation okay? It can't. The only --




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QUESTION: Well, in Parratt, in that line ofcases, and Hudson against Palmer, tend to cut against that argument, perhaps in a rather limited field.

MR. STAINTHORP: Well, they cut against that argument in a procedural due process case, there's no question about that, and set forth that in such a case post deprivation process may be all the process to which a person is due.

QUESTION: But that just means there's noconstitutional violation. There's no violation of procedural due process if due process is provided, whether it's before or after the deprivation.

MR. STAINTHORP: That's correct. But there's all the difference in the world between that case, where you are attacking the process and whether or not you are given process, and this case, where you are attacking the seizure itself of a home, a home which comes within the express wording of the Fourth Amendment, which is given heightened protection by the Fourth Amendment.

QUESTION: Are you just, are you basing yourprimary argument on the fact that this was a seizure of property which would qualify as an effect or as of a house? Just property?

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QUESTION: Well, I know, but house and effects,they're all property. They're all property.

MR. STAINTHORP: That's correct.QUESTION: Are you indicating there was any

invasion of privacy in this case?MR. STAINTHORP: Yes. There was an invasion of

privacy if you view privacy as broader than secrecy, which this Court has historically done.

QUESTION: Well, they got thrown out of theirhouse, didn't they?

MR. STAINTHORP: That's right. And their lives were disrupted, they couldn't --

QUESTION: Isn't that a fairly egregiousinvasion of privacy, to get thrown out of your own house?

MR. STAINTHORP: It always seemed to me, Justice White, that it was.

QUESTION: So you don't need to really rely onjust the fact that this was a seizure of a piece of property, do you?

MR. STAINTHORP: I don't need to rely on that but I think I have an extremely strong case based upon that also.

QUESTION: Is that your strongest? Is that yourstrongest?

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1 extremely strong. But I certainly rely upon the invasion2 of privacy in here in disrupting these people's lives,3 preventing them from living their everyday lives, making4 them go live somewhere else - -5 QUESTION: And what did the Seventh Circuit say6 about that aspect of the case?7 MR. STAINTHORP: It said there was not an8 invasion of privacy here, that this type of activity did9 not invade the privacy because it didn't invade my

10 clients' secrecy. And there's no question, I'm not saying11 that anyone looked into the trailer home or did this as12 part of an investigation. That is not part of my case.13 I'm quite clear that this was an invasion of privacy14 because it disrupted their life, because it prevented them15 from pursuing their lawful activities. And certainly this16 Court has previously held - -17 QUESTION: When somebody stops me from doing a18 lawful activity do I say you're invading my privacy?19 MR. STAINTHORP: In certain situations --20 QUESTION: I mean, I don't know what that, that21 doesn't mean anything to me unless by privacy you mean the22 right to be let alone, I suppose, and then everything23 invades the right of privacy.24 MR. STAINTHORP: And this Court has analyzed and25 defined the right of privacy in much narrower terms than




1 that, notably in United States against Place where it held/ 2 that the detention of baggage for 90 minutes was an

3 invasion of privacy of the defendant in that case. So,4 no, I'm not saying that any, any involvement or any5 disruption of lawful activities is an invasion of privacy.6 In the fact situation here, however, the prior7 holdings of this case and I would submit the history of8 the Fourth Amendment and the words of the Fourth Amendment9 would say that there is such an invasion in this

10 situation. That is it's an extremely grievous --11 QUESTION: The words of the First Amendment12 don't say anything about invasion of privacy, do they?13 They say search or seizure.14 MR. STAINTHORP: And they also say secure. And they

¥ 15 don't say a right not to be arrested, but they say the16 right of the people to be secure in their persons, houses,17 papers, and effects. And it is certainly my contention18 here that the action of the sheriff's police in throwing19 them out of their house and making them move to a motel20 for several days, disrupting their life, was a great21 violation of their right to be secure.22 In terms of whether or not that disruption, that23 invasion of their privacy was reasonable or not, that24 isn't before the Court at this time.25 QUESTION: It doesn't say secure from

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N 1 everything. It says secure from unreasonable searches and2 seizures, right?3 MR. STAINTHORP: That's correct.4 QUESTION: And you say this is a seizure, which5 makes sense to me.6 MR. STAINTHORP: Okay. So my argument obviously7 then is that I come right down the middle on the Fourth8 Amendment, that this, the language of the Fourth Amendment9 applies precisely to this type of situation, and that if

10 you look at the history of the Fourth Amendment - - what11 was the history of the Fourth Amendment? It wasn't12 criminal investigations that gave rise to the Fourth13 Amendment. To a large extent it was writs of assistance14 and it was revenue offices going out and seizing

* 15 uncustomed goods, I think notably cider, and taking it16 away. And as my reply brief points out, those seizures17 did not occur in the context of an arrest of the person18 involved.19 So in fact my situation here is very analogous20 to the history that gave rise to the enactment of the21 Fourth Amendment. So it's not, it's not some extension of22 the Fourth Amendment that was uncontemplated by history.23 It's not some extension of the Fourth Amendment that was24 uncontemplated by the words of the Fourth Amendment. I25 come right down the middle of the Fourth Amendment. And




1 also it is not an extension in view of this Court's prior' 2 holdings. And the decision of the Seventh Circuit is a

3 very marked departure from the prior holdings of this4 Court.5 QUESTION: Do you agree with the Seventh6 Circuit's analysis on the takings issue? Was this a7 taking in your view?8 MR. STAINTHORP: I don't think it was a taking9 because it - - and certainly I didn't plead that in the

10 complaint. I think it wasn't a taking.11 QUESTION: Your pleading was confined to the12 Fourth Amendment aspect of the case?13 MR. STAINTHORP: No, my pleading, my original --14 QUESTION: You pled a conspiracy to deprive of

✓ 15 property, didn't you?16 MR. STAINTHORP: I'm sorry, I couldn't hear.17 QUESTION: You pled a conspiracy to deprive of18 property, didn't you?19 MR. STAINTHORP: Well, no, I don't think in so20 many words. I pled violations of the Fourth and21 Fourteenth Amendments and alleged that it was an22 unreasonable seizure. I also alleged that it was a23 violation of substantive due process. I believe the24 original complaint alleged a violation of procedural due25 process, but that, I did not pursue that claim in light of




1 this Court's --2 QUESTION: Would a taking in violation of the3 takings clause be a substantive due process violation4 under the Fourteenth Amendment?5 MR. STAINTHORP: Judge, I really don't --6 Justice, I really don't feel equipped to answer that7 question. That was not a part of my lawsuit here. It's8 not a part of my complaint and not part of the9 constitutional violation that I pled, that I pursued in

10 front of the Seventh Circuit or in this Court. The11 constitutional violations that I have pursued are12 primarily a Fourth Amendment seizure.13 And you are correct, the Seventh Circuit did14 discuss whether it was a takings. It always appeared to15 me that the problem with that was that it was not a taking16 by Government for its own purpose.17 QUESTION: If the Government demolishes a house18 and puts a public school on it, but without compensating,19 is that a seizure?20 MR. STAINTHORP: Is that a seizure? I think in21 certain situations that might be a seizure, yes. That22 certainly could be. But historically that, my23 understanding, has usually been analyzed as under the24 takings clause.25 QUESTION: And under the takings clause your

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remedy is an action for inverse condemnation usually. I don't know the remedies in Illinois, but certainly under the Federal system. Under your theory could a person bring a Fourth Amendment action to recover damages for what is basically an inverse condemnation?

MR. STAINTHORP: If there were a, what could be construed as a seizure, and if that seizure was unreasonable, yes, I think it could be.

QUESTION: Well then you really are broadeningthe Fourth Amendment considerably because there's a whole class of cases where some agent of the Government goes out and purports to take or occupy private property that really he wasn't authorized to do. And those things have been traditionally recompensed by inverse condemnation.If a Fourth Amendment action is available to vindicate that, that's a use of the Fourth Amendment we haven't seen before.

MR. STAINTHORP: Yeah, well, I think you would need to look at whether the taking itself was, came within the definition of a seizure, and then look at whether the seizure was unreasonable.

QUESTION: I don't know why you would have to proceed in that order. Why don't you ask, why can't we ask first whether or not it's a taking, indicating that takings are usually exclusive of seizures, particularly

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because it's not for a law enforcement or investigative purpose? It's to exercise the rights that an owner generally exercises, which it seems to me is what's happening here.

MR. STAINTHORP: Well, this is not a taking for a governmental purpose. This shares more of the attributes of a seizure in the course of some kind of law enforcement work by these agencies. Certainly that's the way they perceived it. But the fact that it was not -- that is the way that the sheriffs perceived it. The fact that it was not in the course of a criminal law enforcement should not serve to bar the Fourth Amendment from this, and this particular seizure has much more in common with those, that type of activity by the governmental agency.

QUESTION: We take this case on the hypothesisthat the sheriff stands in the shoes of the trailer park owner.

MR. STAINTHORP: Correct, Judge. Justice,excuse me.

QUESTION: If this had been a state run trailerpark and the sheriff had wrongfully evicted and removed the trailer pad wouldn't you say that that was a taking?

MR. STAINTHORP: If it -- no. If it had occurred in this type of context, wherein there was a




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1 towing away of the trailer, it seems to me that it should2 be more aptly analyzed as a Fourth Amendment seizure and3 fits very firmly within that line of cases.4 QUESTION: But why? What is, I guess I'm not5 following you in the sense of understanding what your6 criterion is. How do you think we should distinguish in a7 doubtful case between a compensable taking under the Fifth8 Amendment and a seizure under the Fourth?9 MR. STAINTHORP: Certainly one thing to look at

10 would be whether the taking was for the, for a11 governmental purpose. Like if the Government was taking12 it for their own purpose that would seem to fit more13 accurately within the taking line of cases.14 QUESTION: When the Government takes evidence it15 is taking it for its own purpose. Or do you mean its own16 purpose in the sense of as a property user?17 MR. STAINTHORP: Yes, more the latter.18 QUESTION: Well, what do you do then in this19 case? The Government was not taking it as a property20 user, and the Government wasn't taking it as evidence or21 as contraband either. I mean, it doesn't fit neatly in22 any category.23 MR. STAINTHORP: Well, it does fit within the24 line of cases that say that the non-criminal context of a25 seizure is irrelevant to whether the Fourth Amendment




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applies, and also the fact, as this Court held in O'Connor against Ortega, the non-investigatory context of the seizure is irrelevant in terms of the application of the Fourth Amendment.

QUESTION: Well, I'll grant you that, which getsyou to the point in effect of demonstrating that there is nothing in the purpose, in the civil nature of this that precludes a Fourth Amendment application, but it doesn't get to the point of saying how do we distinguish between a case appropriately brought under the Fourth Amendment and one that should be brought under the Fifth for compensation.

MR. STAINTHORP: Yeah, then I am left with the distinction that I drew initially there, that if it was for the Government to actually do something with the trailer or in some way convert it into something for their own use, then it would appear that the takings clause would be more appropriate.

QUESTION: But why does it have to - -QUESTION: It's fair to say then that you

neither pled below nor contend here that there was a taking?

MR. STAINTHORP: Correct. Yes, that is correct, Justice Kennedy.

QUESTION: Why does it have to fall into one or25

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the other?MR. STAINTHORP: Why couldn't it fall into both?QUESTION: You concede that it cannot fall into

both?MR. STAINTHORP: No, I don't concede that at

all. In fact it seems to me that there are several cases where this Court has analyzed actions under several possible constitutional provisions, and it seems to me it could certainly fall under both. I had pled it and litigated it as a Fourth Amendment claim in that it appeared to be very precisely within that amendment.

Mr. Chief Justice, if I have any time remaining could I reserve it?

QUESTION: Yes, Mr. Stainthorp.MR. STAINTHORP: Thank you.QUESTION: Mr. Gillis, we'll hear from you.

ORAL ARGUMENT OF KENNETH L. GILLIS ON BEHALF OF THE RESPONDENT

MR. GILLIS: Thank you, Mr. Chief Justice, and may it please the Court:

The county officers here do not waive their state action argument. On that the trial judge found that there was no evidence of conspiracy and dismissed the lawsuit on that basis. However, we move onto the issues that have been - -




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QUESTION: (Inaudible) thought there was plentyof state action?

MR. GILLIS: They advanced a number, I think two or three positions. One, they said that they would look at light, in the best light favorable to the petitioners here, which I think is the standard --

QUESTION: Well anyway they didn't decide thecase on the basis that there was not state action?

MR. GILLIS: That's right. Under one theme or another they went, they assumed there was state action and then went to the issue of whether the Fourth Amendment is implicated by the conduct here and secondly whether there was a violation of the due process clause.

We believe that the Fourth Amendment, protecting liberty and privacy interests, was not implicated by what occurred here. The --

QUESTION: How about its protection of property?MR. GILLIS: The Fourth Amendment's protection

of property?QUESTION: Yes.MR. GILLIS: We do not think the Fourth

Amendment protects basic property interests. The Katz decision states that those interests are largely to be left to the states. Here there is an adequate state remedy.




1 QUESTION: So that seizure basically is a dead' 2 letter unless it's accompanied by a privacy violation on

3 your view?4 MR. GILLIS: Yes.5 QUESTION: To me it's one thing to say that, as6 we have in Katz and later cases, that a violation of7 privacy constitutes a search and a seizure, or a seizure,8 even if there isn't any physical violation of property9 rights. But it's quite another proposition to say that

10 when there is a violation of property rights there is not11 a search and seizure, that privacy, in other words an12 invasion of privacy is an essential condition for a13 violation of the Fourth Amendment. We have never said1415

that before, have we?MR. GILLIS: I admit that to put any type of

16 ceiling on that conduct would be risky, but on the facts17 we have here where there is no prying or snooping,18 invading or inspecting, we think the Fourth Amendment is19 not involved. It may be difficult to say --20 QUESTION: Well, what about the classic English21 case challenging general warrants, which is what this22 provision of our Constitution was all about, was a case23 alleging trespass, a violation of property interests. I24 don't know how you can say that mere violation of property25 interest has nothing to do with the Fourth Amendment.

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1\ It's its whole background.2 MR. GILLIS: I think it was trespass to gain3 information that should be kept private, that persons have4 a right to keep private. If it were just merely --5 QUESTION: Yes, but that was no part of the old6 trespass action, was it?7 MR. GILLIS: I'm sorry.8 QUESTION: That was no - - I mean the intention9 to gain information was not part of the cause of action in

10 Entick and Carrington, and there's no indication that that11 was, that that policy was somehow narrowed when the Fourth12 Amendment got adopted, was there?13 MR. GILLIS: I think you have to look at the14 objective acts of the police officers or sheriffs. Did

2 15 they go there with an intent to gain evidence in some16 broad sense to use against the house holder? And I say17 broad sense, I mean to include the health cases like18 Camara v. Municipal Court and Yee v. Seattle, as well as19 the more typical law enforcement case. But I think in20 each instance the Fourth Amendment is protecting the --21 QUESTION: Mr. Gillis, could I give you an -- we22 had an argument this morning arising out of a drug seizure23 in that the law enforcement agency took possession of a24 home that had been purchased with the proceeds of,25 allegedly, of drug transactions. Supposing you had a




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yacht sitting in a harbor that was just bought with proceeds of crime and the Government wanted to go out and seize it to forfeit, and forfeit it. Would you say there was a seizure or not when they go on board and take over the boat?

MR. GILLIS: I think that could be a Fourth Amendment seizure if the Government is following through on some interest. The early Fourth Amendment cases substantiate that.

QUESTION: Even though there is no criminalproceeding, just that it's the proceeds of criminal conduct?

MR. GILLIS: I think that it, the Fourth Amendment should not be limited to the strict --

QUESTION: To evidentiary searches, right?MR. GILLIS: Right. But it should be viewed

more in the sense of a Government end or a Government mission.

QUESTION: So if this precise seizure we have inthis case, to use the colloquial term rather than the constitutional term, had been for the purpose of forfeiting the trailer you would agree that would have been a seizure?

MR. GILLIS: Yes, or any typical policeactivity.




*2

QUESTION: So taking the trailer for theGovernment to keep does constitute a Fourth Amendment

3 violation, but taking the trailer in order to give it back4 to the, well, they're taking it to get it off of the5 property - -6 MR. GILLIS: We think this is like the Cardwell7 case where the police car was parked on the public lot and8 then the police officers took paint scrapings from it and9 used those. That was held not to be a search because

10 there was nothing about that that invaded the privacy. No11 peeking within it, no inspecting it. The trailer here was12 sitting in plain view. It was moved. No officer looked13 inside it or attempted to introduce anything into evidence

s 14 in any type of proceeding.15 QUESTION: They didn't succeed in carrying it16 off either, did they?17 MR. GILLIS: No, they -- it was moved18 temporarily and given back to the petitioners in this19 case.20 QUESTION: Well, how was it moved? It was not21 moved by mental telepathy or anything. They seized it and22 moved it, didn't they?23 MR. GILLIS: The trailer park people put a hook24 on it with a tractor, moved it off on its wheels to a25 nearby lot where it was kept safe.




\N QUESTION: Isn't the theory of this case and2 wasn't the theory of the judgment below that it was in the3 possession of the police officers, that they took4 possession of it and moved it out of there?5 MR. GILLIS: If you adopt the theory of the6 Seventh Circuit it was temporarily in their possession,7 but turned over again to the plaintiffs, unlike --8 QUESTION: I understand, but it seems to me9 that's at least a temporary seize. I mean, you know, if

10 words mean anything they seized it and moved it.11 MR. GILLIS: I think you could, using the common12 meaning of words it was a temporary seizure. But what, we13 do not believe it was a Fourth Amendment seizure because

\ 14) 15

it doesn't implicate the purposes of the Fourth Amendment.We also believe that this is not a violation of

16 the cases that this Court has handed down on substantive17 due process. There is nothing about this activity that18 was fulfilling any Illinois policy, and we think the case19 cited by petition, Moore v. the City of East Cleveland, is20 far from the situation here.21 Illinois had an adequate remedy for this. In22 its forcible detainer and entry act, an eviction that goes23 ahead without a proper court order can be the subject of a24 damage action. That remedy was always available, as was25 pointed out earlier.

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\\ If there are no other questions we would ask2 this honorable Court to affirm the conviction.3 QUESTION: In Texas against Brown Justice4 Stevens said that the Fourth Amendment protects two5 interests of the citizen, the interest in retaining6 possession of property and the interest in maintaining7 personal privacy. You disagree with that?8 MR. GILLIS: I think we do. We would say that9 it should be --

10 QUESTION: You have to, I suppose.11 MR. GILLIS: Yes. We contend it should be12 limited to privacy interests and to liberty interests such13 as those involved in United States v. Place.

\ 1415

QUESTION: Thank you -- excuse me. Have you gotsomething?

16 QUESTION: Horton against California, that was17 something said by the court, wasn't it?18 MR. GILLIS: Horton against California was the19 search where they were, the search warrant said rings and20 they also took guns.21 QUESTION: Well, the court said the right to22 security and person and property protected by the Fourth23 Amendment may be invaded in quite different ways by24 searches and seizures.25 MR. GILLIS: Yes, we agree with that. But that,




1\ the question is whether that involves cases where things2 are moved and implicating just the property or possessory3 interest rather than the typical motives behind the Fourth4 Amendment.5 QUESTION: Thank you, Mr. Gillis.6 Mr. Stainthorp, you have 1 minute remaining.7 REBUTTAL ARGUMENT OF JOHN L. STAINTHORP8 ON BEHALF OF THE PETITIONERS9 MR. STAINTHORP: Thank you, Your Honor, Mr.

10 Chief Justice.11 The respondents have now acknowledged that this12 was a seizure which occurred in this case but have held13 that it was, but have argued to Your Honors that it was14

i 15not a Fourth Amendment seizure. This is a whollyunnecessary gloss to put on the Fourth Amendment and the

16 type of gloss which has never been placed on the Fourth17 Amendment before, that some seizures are Fourth Amendment18 seizures, other seizures are not Fourth Amendment19 seizures. And it will further complicate a lot of Fourth20 Amendment litigation if this is allowed, if this kind of21 differentiation is allowed to continue.22 Clearly the seizure in this case did violate the23 possessory interests that this Court has previously held24 are protected by the Fourth Amendment, and I think equally25

r*'

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would ask that the decision of the Seventh Circuit be overturned and this case remanded for trial on whether it was reasonable.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Stainthorp.

The case is submitted.(Whereupon, at 1:40 p.m., the case in the above-

entitled matter was submitted.)




CERTIFICATION

Alder son Reporting Company, Inc., hereby certifies that the

attached pages represents an accurate transcription of electronic

sound recording of the oral argument before the Supreme Court of

The United States in the Matter of:

Edward-Soldal, et ux. , Petitioners v. Cook County, Illinois

and that these attached pages constitutes the original transcript of

the proceedings for the records of the court.

BY AiW« fkel&S .a

(REPORTER)

Documents

THE SUPREME COURT OF THE UNITED STATES … · 10/5/1992 · we look at the history of the enactment of the Fourth Amendment and the historical events that gave rise to its enactment